supplemental brief for the appellants/cross-appellees · appellees/cross-appellants, v. barack...
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Nos. 14-5004, 14-5016, 14-5005, 14-5017
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
LARRY KLAYMAN et al.
Appellees/Cross-Appellants, v.
BARACK HUSSAIN OBAMA et al.
Appellants/Cross-Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SUPPLEMENTAL BRIEF FOR THE APPELLANTS/CROSS-APPELLEES
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
DOUGLAS N. LETTER H. THOMAS BYRON III HENRY C. WHITAKER
(202) 514-3180 Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
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TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1 ARGUMENT ............................................................................................. 3 CONCLUSION ........................................................................................ 15
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*Authorities upon which we chiefly rely are marked with asterisks. ii
TABLE OF AUTHORITIES
Cases Page Abdelfattah v. U.S. Dep’t of Homeland Security,
787 F.3d 524 (D.C. Cir. 2015) ......................................................... 12, 13 ACLU v. Clapper,
785 F.3d 787 (2d Cir. 2015) ............................................................ 1, 6, 7 Am. Bar Ass’n v. FTC,
636 F.3d 641 (D.C. Cir. 2011) ............................................................... 11 *Brown v. Plata,
131 S. Ct. 1910 (2011) ............................................................................ 9 Burke v. Barnes,
479 U.S. 361 (1987) .............................................................................. 11 Camreta v. Greene,
131 S. Ct. 2020 (2011) .......................................................................... 11 Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138 (2013) ............................................................................ 7 Clarke v. United States,
915 F.2d 699 (D.C. Cir. 1990) (en banc) ............................................... 12 Dep’t of Treasury v. Galioto,
477 U.S. 556 (1986) .............................................................................. 11 Doe v. Webster,
606 F.2d 1226 (D.C. Cir. 1979) ............................................................. 13 Grimes v. Comm’r of IRS,
82 F.3d 286 (9th Cir. 1996) .................................................................. 14
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Herring v. United States, 555 U.S. 135 (2009) .............................................................................. 13
INS v. Lopez-Mendoza,
468 U.S. 1032 (1984) ............................................................................ 13 Log Cabin Republicans v. United States,
658 F.3d 1162 (9th Cir. 2011) .............................................................. 11 Miller v. French,
530 U.S. 327 (2000) ................................................................................ 9 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982) .................................................................................. 9 Penn. Bd. of Prob. & Parole v. Scott,
524 U.S. 357 (1998) .............................................................................. 13 Ramsden v. United States,
2 F.3d 322 (9th Cir. 1993) .................................................................... 14 Salazar v. Buono,
559 U.S. 700 (2010) ................................................................................ 9 Statutes PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, § 2(a), 125 Stat. 216 ............................................... 3 USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268 (2015) ....................................... 1, 4, 5 50 U.S.C. § 1861 ........................................................................................ 3 Legislative Material: 161 Cong. Rec. S3439 (daily ed. June 2, 2015) ..................................... 4, 5
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Other Authorities In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. Nos. BR 15-75, Misc. 15-01 (F.I.S.C. June 29, 2015),
http://www.fisc.uscourts.gov/sites/default/files/BR%2015-75%20Misc%2015-01%20Opinion%20and%20Order_0.pdf ...... 1, 4, 6, 8
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. Nos. BR 15-77, 15-78 (F.I.S.C. June 17, 2015),
http://www.fisc.uscourts.gov/sites/default/files/BR%2015-77%2015-78%20Memorandum%20Opinion.pdf .................................................... 4
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INTRODUCTION
The government’s merits briefs explain why plaintiffs lack
standing to sue and why there is no basis for holding the Section 215
bulk telephony-metadata program unconstitutional, let alone
preliminarily enjoining it as the district court did. This supplemental
brief by the government addresses, in response to plaintiffs’
supplementary submissions, the Second Circuit’s decision in ACLU v.
Clapper, 785 F.3d 787 (2d Cir. 2015); the recently enacted USA
FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268 (2015); and the
Foreign Intelligence Surveillance Court’s recent opinion and order
granting the government’s application to resume the Section 215 bulk
telephony-metadata program during a temporary transition period. See
In re Application of the FBI for an Order Requiring the Production of
Tangible Things, Dkt. Nos. BR 15-75, Misc. 15-01 (F.I.S.C. June 29,
2015), http://www.fisc.uscourts.gov/sites/default/files/BR%2015-
75%20Misc%2015-01%20Opinion%20and%20Order_0.pdf.
The FISC opinion explains that the USA FREEDOM Act
establishes a 180-day transition period, during which the bulk collection
under Section 215 of telephony metadata may continue, to allow for the
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orderly termination of the National Security Agency’s Section 215 bulk
production program. Following the transition period, the statute
prohibits the bulk collection of telephony metadata under Section 215
and authorizes the government to seek targeted production of certain
telephony metadata records after first having obtained authorization
from the Foreign Intelligence Surveillance Court (except in emergencies
at the direction of the Attorney General). That framework, however,
does not take effect until 180 days after enactment (November 29,
2015), reflecting the judgment of Congress that an orderly transition
from the existing program is appropriate.
This is an appeal from the district court’s earlier decision to grant
plaintiffs a preliminary injunction against the Section 215 bulk
telephony-metadata program, which the district court stayed pending
appeal. That preliminary injunction granted plaintiffs Larry Klayman
and Charles Strange two kinds of relief: prospective relief in the form
of barring the government from collecting telephony metadata about
those two plaintiffs, and a retrospective “purge” of any such metadata
the government may have already collected about those plaintiffs. See
Gov’t Br. 24-25.
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Plaintiffs’ claims for prospective relief will be moot when the
Section 215 bulk collection regime of telephony metadata ends in less
than six months, though they are not moot now. In the meantime,
however, the Court should respect Congress’s decision to create an
orderly transition away from the Section 215 bulk telephony-metadata
program. Especially in light of Congress’s considered judgment that the
program should continue for this limited period, plaintiffs are not
entitled to any of the equitable relief the district court granted, which
standing alone is ample basis for reversing the district court’s
preliminary injunction—even if plaintiffs had standing and valid claims
on the merits (which they do not).
ARGUMENT
1. Section 215 of the USA PATRIOT Act, enacted in 2001,
amended 50 U.S.C. § 1861 and was the source of the government’s
statutory authority to conduct the Section 215 bulk telephony-metadata
program. Section 215 expired, pursuant to the statutory sunset period,
on June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L.
No. 112-14, § 2(a), 125 Stat. 216.
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On June 2, 2015, Congress enacted the USA FREEDOM Act.
First, Congress reauthorized Section 215 and set a new sunset date of
December 15, 2019, for that provision, as amended, to expire. See USA
FREEDOM Act § 705(a); see 161 Cong. Rec. S3439 (daily ed. June 2,
2015) (statement of Sen. Lee) (Congress’s “intent in passing the USA
FREEDOM Act is that the expired provisions be restored in their
entirety just as they were on May 31, 2015, except to the extent they
have been amended by the USA FREEDOM Act.”); In re Application of
the FBI for an Order Requiring the Production of Tangible Things, Dkt.
Nos. BR 15-77, 15-78, at 8-13 (F.I.S.C. June 17, 2015) (holding that the
USA FREEDOM Act reinstated Section 215 as amended by the statute),
http://www.fisc.uscourts.gov/sites/default/files/BR%2015-77%2015-
78%20Memorandum%20Opinion.pdf.
Second, the new statute will, as of November 29, 2015, prohibit
the government from conducting the bulk collection of telephony
metadata under Section 215. See USA FREEDOM Act § 103. Congress
replaced bulk telephony-metadata collection under Section 215 with a
new mechanism providing for the targeted production of call detail
records and other tangible things subject to the statute. See id. § 101.
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Finally, Congress provided for a 6-month transition period by
delaying for 180 days the effective date of the new prohibition on bulk
collection under Section 215, and also the corresponding
implementation date of the new regime of targeted production under
the statute. USA FREEDOM Act § 109(a). Congress specified that the
USA FREEDOM Act does not during that period “alter or eliminate” the
government’s longstanding authority, as reflected in numerous opinions
from the Foreign Intelligence Surveillance Court, to conduct bulk-
collection activities under Section 215. See id. § 109(b). During that
transition period, then, the former version of Section 215 remains fully
in effect as part of that transition and permits the government to
continue such bulk collection. 161 Cong. Rec. S3439-3440 (daily ed.
June 2, 2015) (statement of Sen. Leahy) (noting that Congress “included
a provision to allow the government to collect call detail records, CDRs,
for a 180-day transition period, as it was doing pursuant to Foreign
Intelligence Surveillance Court orders prior to June 1, 2015”).
Pursuant to that authority, the government applied to the Foreign
Intelligence Surveillance Court for authorization to resume the Section
215 bulk-collection program during the transition period. The FISC
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granted that application. See In re Application of the FBI for an Order
Requiring the Production of Tangible Things, Dkt. Nos. BR 15-75, Misc.
15-01 (F.I.S.C. June 29, 2015) (“June 29 FISC Op.”),
http://www.fisc.uscourts.gov/sites/default/files/BR%2015-
75%20Misc%2015-01%20Opinion%20and%20Order_0.pdf. The FISC
held that Congress in the USA FREEDOM Act explicitly authorized the
government to continue the Section 215 bulk telephony-metadata
program during the 180-day transition period as part of an orderly
transition away from bulk collection of telephony metadata under that
program. See id. at 10-12.
2. Prior to the enactment of the USA FREEDOM Act, the Second
Circuit had held in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015), that
Section 215 does not authorize the bulk-telephony metadata program.
In reaching that holding, the Second Circuit rested its decision wholly
on statutory grounds, and did not decide whether the program infringes
the Constitution. See id. at 825. That statutory holding has no bearing
on plaintiffs’ claims in this case because plaintiffs some time ago
amended their complaints to remove any statutory claims. See Gov.
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Resp. Reply Br. 27-28.1 The ACLU opinion does, however, confirm that
plaintiffs here are not entitled to a preliminary injunction; the Second
Circuit remanded the case without ordering the district court to enjoin
the program, noting the gravity of the “asserted national security
interests at stake” and that Congress was considering legislation to
reauthorize the program. ACLU, 785 F.3d at 826.2
1 The ACLU decision does not support plaintiffs’ claim to standing
in this case. The Second Circuit based its finding that the ACLU plaintiffs had standing on the fact that those plaintiffs were subscribers of Verizon Business Network Services (VBNS), and the fact that the government did not dispute that it had collected telephony metadata from VBNS under a now-expired FISC order. 785 F.3d at 795-96, 801. Here, by contrast, none of the plaintiffs are VBNS subscribers. See Gov. Resp. Reply Br. 7-8 & n.1. Plaintiffs’ claim to injury is therefore speculative, and fails to establish standing for the same reasons the Supreme Court articulated in Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1146 (2013). See ACLU, 785 F.3d at 801-02 (discussing Amnesty International).
Contrary to the Second Circuit’s suggestion, moreover, the
government has not conceded that the Section 215 program collects “virtually all” telephony metadata, and in fact has repeatedly explained that it does not. See, e.g., Gov. Resp. Reply Br. 8-9. We have been unable to elaborate further not because we agree with that characterization, but instead because, among other reasons, the identities of telecommunications companies involved in the program remain classified. Id. at 9.
2 On July 14, 2015, the ACLU plaintiffs filed a motion asking the Second Circuit to impose an immediate preliminary injunction against
Continued on next page.
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The Second Circuit rendered its statutory holding without the
benefit of the USA FREEDOM Act, which authorizes the government to
continue the Section 215 bulk telephony-metadata program during a
180-day transition period, after which the program will end. The
FISC’s June 29, 2015 opinion makes clear that Congress did indeed
reauthorize the program for the transition period. The FISC explicitly
rejected the Second Circuit’s analysis in ACLU, noting that the Second
Circuit’s decision was rendered before Congress enacted the USA
FREEDOM Act, in which “Congress—with full knowledge and extensive
public debate of this program and its legal underpinnings—permitted
the continuation of the program until November 29, 2015.” Id. at 18.
The FISC also observed that Congress’s approval of the continuation of
this program for the transition period “has been clearly manifest.” Id.
at 19.3
operation of the Section 215 bulk telephony-metadata program. That motion is pending.
3 The Second Circuit has, since the enactment of the USA FREEDOM Act, requested supplemental briefing on the effect of that enactment on its decision. Those briefs are due July 24, 2015.
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3. Congress’s decision—confirmed by the FISC—to permit the
government to conduct bulk collection of telephony metadata under
Section 215 during the transition period makes clear that plaintiffs
would not be entitled to any of the equitable relief they seek, even if
they stated a claim on the merits and even if they had standing to sue.
The district court’s preliminary injunction should be reversed on that
ground alone.
Now that Congress has provided for a transition period during
which Section 215 bulk collection expressly continues to be permitted
but is strictly time-limited, equitable relief is inappropriate. A
plaintiff’s entitlement to such relief should be informed by legislation
that is enacted during the pendency of litigation. See, e.g., Miller v.
French, 530 U.S. 327, 347 (2000); Salazar v. Buono, 559 U.S. 700, 718
(2010). Congressional legislation is an appropriate basis on which a
federal court can rely to determine the permissible remedies for an
alleged constitutional violation. See Brown v. Plata, 131 S. Ct. 1910,
1944, 1946 (2011) (applying the requirements of the Prison Litigation
Reform Act to remedies for unconstitutional prison conditions and
giving the State two years to comply with determination that prison-
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overcrowding conditions violated the Constitution); cf. Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88-89
(1982).
The USA FREEDOM Act reflects Congress’s determination to
authorize Section 215 bulk telephony-metadata collection to continue
during a brief winding-down period before the new framework of
targeted telephony-metadata production takes effect. Congress thus
judged that the sort of abrupt, immediate interference with the program
that plaintiffs here seek through an injunction would be contrary to the
public interest, confirming that equitable relief is inappropriate quite
apart from the government’s standing and merits arguments. The USA
FREEDOM Act reflects the considered judgment of the political
branches that the government’s paramount interest in having this
temporary transition program to combat the continuing terrorist threat
strongly outweighs plaintiffs’ minimal privacy interests, particularly
because plaintiffs have not demonstrated that the government obtained,
much less analyzed, any telephony metadata about their calls under the
program at issue here. See Gov. Opening Br. 66-67; Gov. Response
Reply Br. 7-12, 28-30.
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4. Once the 180-day transition period ends, and with it the
government’s authority to conduct bulk collection under Section 215,
plaintiffs’ claim for prospective injunctive relief against the bulk
telephony-metadata program conducted under that authority will be
moot. See, e.g., Log Cabin Republicans v. United States, 658 F.3d 1162,
1166-67 (9th Cir. 2011) (per curiam); see also, e.g., Burke v. Barnes, 479
U.S. 361, 363-64 (1987); Dep’t of Treasury v. Galioto, 477 U.S. 556, 559-
60 (1986). The appropriate course at that juncture would be to vacate
the district court’s decision to grant preliminary prospective relief as
moot. See, e.g., Camreta v. Greene, 131 S. Ct. 2020, 2034-35 (2011); Am.
Bar Ass’n v. FTC, 636 F.3d 641, 649 (D.C. Cir. 2011). Plaintiffs’ claim
for a prospective injunction is not moot during the 180-day transition
period but is without merit as discussed above.
Plaintiffs appear to contend that their claims for prospective relief
will not be moot even after expiration of the transition period, based on
the exception to mootness that is applicable when a defendant
voluntarily ceases the challenged practice. See Pl. Supp. to Notice of
New Case Authority 7-8. That exception is inapplicable, however,
because Congress’s decision to terminate the Section 215 bulk-
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telephony metadata program after the 180-day transition period was
not voluntary action by the Executive Branch. See Am. Bar. Ass’n, 636
F.3d at 648. And even if it were, the decision of the political branches of
government to terminate the Section 215 program after a period of
transition was not made to avoid suit. See Clarke v. United States, 915
F.2d 699, 705-06 (D.C. Cir. 1990) (en banc).
5. The district court also granted in its preliminary injunction the
request of plaintiffs Larry Klayman and Charles Strange for a
retrospective “purge” of any metadata the government may have
collected about them under the Section 215 bulk telephony-metadata
program. We have already explained that the district court erroneously
granted this remedy, which would require an irreversible purge of any
telephony metadata the government may have collected under the
Section 215 program, and thus improperly grants full relief on the
merits in the guise of awarding mere “preliminary” relief. See Gov’t Br.
67.
In any event, the USA FREEDOM Act makes clear that plaintiffs
are not entitled to expungement either. Although this Court has
concluded that federal courts have equitable authority in extraordinary
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cases to expunge records as a remedy for an alleged constitutional
violation, see Abdelfattah v. U.S. Dep’t of Homeland Security, 787 F.3d
524, 534 (D.C. Cir. 2015), expungement is not an available remedy as a
matter of right, and instead depends on a “careful weighing of the
litigants’ respective interests,” id. at 537; see Doe v. Webster, 606 F.2d
1226, 1230 (D.C. Cir. 1979) (expungement available in “unusual and
extraordinary circumstances”). We have already demonstrated that
plaintiffs are not entitled to an equitable remedy in light of the USA
FREEDOM Act, and their failure to demonstrate any harm to them as a
result of the Section 215 program.
To be sure, the Supreme Court has adopted in certain
circumstances the exclusionary rule as a remedy in criminal cases. But
the Court has also held that, outside the context of criminal trials, that
rule does not foreclose the government from using the fruits of unlawful
searches or seizures. See, e.g., Penn. Bd. of Prob. & Parole v. Scott, 524
U.S. 357, 362 (1998); INS v. Lopez-Mendoza, 468 U.S. 1032, 1042-50
(1984). A decision to exclude evidence can be justified only when the
social costs of the rule are substantially outweighed by its deterrent
value. See, e.g., Herring v. United States, 555 U.S. 135, 141 (2009).
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Here, no deterrence is needed, or even possible, in light of the imminent
end of the Section 215 bulk telephony-metadata program. It is even
less plausible that plaintiffs would have a right to have expunged
whatever business records the government may have acquired under
Section 215 that contain telephony metadata about their calls (which
again there is no evidence the government has done). See Grimes v.
Comm’r of IRS, 82 F.3d 286, 291 (9th Cir. 1996) (holding that the
Internal Revenue Service was entitled to retain copies of unlawfully
seized tax records); Ramsden v. United States, 2 F.3d 322, 327 (9th Cir.
1993) (similar).
6. For the foregoing reasons, plaintiffs are not entitled to the
preliminary injunctive relief granted by the district court, even if they
had standing and a valid claim on the merits. The Court may properly
dispose of the appeal on that ground without reaching the constitutional
claims in this case.
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CONCLUSION
For the foregoing reasons, the Court should hold that plaintiffs
are not entitled to injunctive relief in light of the USA FREEDOM Act
and reverse the district court’s judgment.
Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
DOUGLAS N. LETTER H. THOMAS BYRON III /s/ Henry C. Whitaker
HENRY C. WHITAKER (202) 514-3180 Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
JULY 2015
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CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2015, I filed this Supplemental
Brief by filing it with the court using the appellate CM/ECF system.
I certify that the participants in this case are registered CM/ECF
filers and that service upon them will be accomplished by the CM/ECF
system.
/s/ Henry C. Whitaker HENRY C. WHITAKER
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